STATE OF MAHARASHTRA Vs. FAZAL MOHAMOOD TANDEL

JUDGEMENT

(1.) THIS Criminal Appeal is directed against the judgment and order of the learned Additional sessions Judge for Greater Bombay dated 27th September, 1982 whereby he quashed and set aside the order of the conviction and sentence passed by the learned Additional Chief metropolitan Magistrate, 19th Court, Esplanade, Bombay convicting and sentencing the respondents under Sections 135 (1) (a), 135 (1) (b), r. w. 135 (1) (ii) of the Customs Act and Section 5 of the Imports and Exports (Control) Act.

(2.) THE prosecution case is that on 23-4-1972 original accused No. 1 and one Kamlakar Thakur carried 145 bags of pulses in the truck of the said Thakur from the residence of the said Thakur to Marve Dock and got them loaded in the vessel 'vasanti Prasad' belonging to original accused no. 2, who was also its tandel for exporting the said 145 bags of pulses to Dubai. The said vessel left Marve port in the evening of 23-4-1972. Original accused No. 2 and original accused Nos. 4 to 10 and two more persons one Anwar and one Eknath took the vessel to Dubai where they reached on or about 2-5-1972. The accused remained on board the vessel and only Anwar and eknath got down and went ashore in the town and brought one Ramesh who had been mentioned by original accused Nos. 1 and 2 while leaving Marve port as the person who made the arrangement for unloading the said 145 bags of pulses in Dubai. During that stage in the vessel, anwar and Eknath were the only persons who used to leave the vessel during day time and return in the evening for a halt. On or about 21st May, 1972 Ramesh, Anwar and Eknath brought 27 packages and loaded the same in the vessel 'vasanti Prasad' with instructions to take them to marve and to be delivered to another vessel who would approach them and make red and white signals. For this purpose they were paid Rs. 500/- and also some ration at Dubai. Anwar, Eknath and Ramesh stayed at Dubai. On 20-5-1972, the vessel 'vasanti Prasad' was near Arnala Port within the Indian Customs waters on its return journey from Dubai where some 20-25 persons came in a fishing vessel and forcibly boarded the vessel 'vasanti Prasad' from where they looted 7 packages. The vessel 'vasanti Prasad' thereafter came to Manori creek on or about 29-5-1972 and on 30-5-1972, while it was at anchor, one vessel by name 'narayan Prasad' bearing No. JDR 1496 came towards 'vasanti Prasad' and gave red and white light signals. After approaching the vessel 'vasanti Prasad' three crew members from the other vessel namely accused Nos. 11, 12 and 13 helped in loading the said packages on the vessel 'narayan Prasad'. Thereafter, 'vasanti prasad' reached Manori Bunder on the morning of 31st May, 1972. All the crew members except original accused No. 5 went to their respective houses. After receiving 16 packages, accused No. 11 brought the said vessel 'narayan Prasad' to Marve shore where an abandoned unserviceable boat was lying. The said 16 packages were transhipped in a small boat belonging to accused No. 3 and unloaded in the cabin of the said abandoned unserviceable boat. It is further the case of the prosecution that all original accused illegally smuggled the said 16 packages and boxes containing the aforesaid goods on 30th or 31st May, 1972.

(3.) DURING the trial, accused No. 2 was absconding and hence his case was separated. In order to support its case, the prosecution examined three witnesses, viz. Bhopardekar attached to the customs House at Manori, Takamle who was serving as a Superintendent of Thane Circle in the year 1972 and Tarkhedkar, who was then serving as Inspector in Thane Preventive Branch. They have also produced the relevant documents and statements of the accused under Sections 107 and 108 of the Customs Act. On the basis of this evidence, original accused No. 1 was discharged, while original accused No. 5 pleaded guilty and was separately convicted. As far as the remaining original accused, they pleaded not guilty to the charge. Thereafter, witnesses were recalled for cross-examination, but after the first two witnesses were cross-examined by the defence, accused No. 12 was also taken into custody. As he was absent from the beginning, all the three officers were recalled and their evidence was recorded and charge was framed against accused No. 12 on 28-3-1978. Thereafter witness No. 3 was cross-examined by the defence. So far as accused No. 12 was concerned, all the three witnesses were kept present and made available for cross-examination, but the learned advocate for accused No. 12 was absent on that day and hence the witnesses were discharged. The accused in their statement denied having committed any offence and contended that the entire evidence was false. They also pleaded that the confessional statements were recorded under threats of assault and force and they signed the said statements as per the directions of the Customs Officers. The learned Magistrate on the conclusion of the trial, found them all guilty. Accordingly, they were convicted and the original accused Nos. 2, 3, 4, 7, 8, 9, 10, 11, 12, and 13 were convicted for offences punishable under sections 135 (1) (a), 135 (1) (b) r. w. 135 (1) (ii) of the Customs Act, 1962 and section 5 of the imports and Exports (Control) Act, 1947. While accused Nos. 2, 3, 4, 7, 8, 9, and 10 were sentenced to suffer R. I. for one year each and to pay fine of Rs. 2000/- each, i. d. to suffer further r. I. for six months for offences punishable under Sections 135 (1) (a), r. w. 135 (1) (b) of the customs Act, 1962, no separate sentence was imposed for the offence under Sections 135 (1) (b)r. w. 135 (1) (ii) of the Customs Act. The said accused Nos. 2, 3, 4, 7, 8, 9, and 10 were also convicted for an offence punishable under section 5 of the Imports and Exports (Control) Act and sentenced to suffer R. I. for one month each to pay a fine of Rs. 1000/-, i. d. to suffer R. I. for two months. As far as accused Nos. 11, 12 and 13 were concerned, they were also found guilty and convicted for offences under section 135 (1) (b) r. w. 135 (1) (ii) of the Customs Act, 1962 and sentenced to suffer R. I. for six months each and to pay a fine of Rs. 1000/-, i. d. to suffer R. I. for two months.